APPEAL from the Circuit Court of Cook County; the Hon. JOHN F.
HECHINGER, Judge, presiding.
MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Defendant, Charles Calahan, was charged by indictment with the offense of murder in violation of section 9-1 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 9-1). Upon a jury trial defendant was found to be guilty as charged and was sentenced to a term of confinement of 75-100 years in the Illinois State Penitentiary. From entry of the judgment of conviction defendant appeals contending (1) that the trial court erred in denying defendant's motion in limine to exclude from evidence testimony characterized as a dying declaration; (2) that the prosecutor's comments during closing argument deprived defendant of a fair trial; and (3) that the evidence adduced at trial failed to establish his guilt beyond a reasonable doubt.
We affirm the judgment of the circuit court.
Roderick McDuffey and Larry Phipps testified that on the evening of January 14, 1973, they and their friend Joseph Cooper were at the home of Betty McNulty, located at 15 North Oakley Avenue in Chicago, Illinois. At approximately 10:30 p.m. they left the apartment, went to a nearby tavern and purchased a six-pack of beer which the trio shared at Betty McNulty's home. Shortly thereafter, McNulty left their company while they remained at her residence to attend to her children. She returned at approximately 3 a.m., and McDuffey, Cooper and Phipps then walked two blocks to Joe's Hello Tavern in order to purchase some soft drinks.
Joe Cooper entered the tavern while his two companions remained on the sidewalk. Cooper wore a long black leather coat on this occasion. According to McDuffey and Phipps, defendant, Charles Calahan, emerged from the tavern and asked them if they had a match. They responded in the negative. Defendant then inquired whether they knew the individual in the tavern wearing the long black coat. McDuffey and Phipps identified him as Joe Cooper. Defendant, wearing a black "Superfly" hat and a three-quarter length brown or black leather coat, pulled a gun from his belt, put it in his coat pocket and walked away.
Shortly thereafter, Cooper exited the tavern bearing the soft drinks and the three youths walked away. Defendant reappeared, ordered them to stop and asked Cooper for a match. Cooper attempted to comply. Defendant seized this opportunity to draw his firearm, announced his name and stated that "I'm going to give you three seconds to get that coat off" or "I want your coat. I'm going to count to three." Cooper again attempted to comply and commenced to remove his coat. Defendant counted to two and shot him in the stomach. Cooper dropped the coat and fled. McDuffey testified that defendant picked up the coat and walked away. Phipps testified that he told defendant that he did not have to shoot Cooper inasmuch as Cooper was "coming out of the coat." Defendant turned toward Phipps and said, "What do you want?" Phipps ran and shortly caught up with Cooper.
Cooper returned to the McNulty home and from there was transported to Cook County hospital by Phipps and Betty McNulty's boyfriend. McDuffey remained at the McNulty residence. At the hospital, Phipps described the assailant to investigating authorities. Phipps failed to inform police of defendant's name at that time though at trial his testimony indicated that Calahan announced his name prior to shooting Cooper.
While Cooper was being prepared for emergency surgery, he was visited by his mother, Katie Cooper, and his great aunt, Martha Emery, who each testified during the course of the hearing on defendant's motion in limine and subsequently at trial regarding Cooper's dying declaration.
Within hours of the shooting, Chicago Police Officers William Rooney and Daniel Coffman interviewed Booker Strothers, a bartender at Joe's Hello Tavern, who had been on duty that evening. Strothers testified that a man matching the description of defendant, wearing a black "Superfly" hat and brown leather coat had been in the tavern that evening and had left between 3 and 4 a.m. Strothers told the officers that the individual was known to him as Charles Calahan.
Rooney and Coffman proceeded to the administrative offices of the Chicago Housing Authority where they obtained defendant's address. Upon arrival at that location the officers effected defendant's arrest and seized a black leather coat and black "Superfly" hat. Mrs. Cooper, McDuffey and Phipps identified the coat as belonging to Joe Cooper. McDuffey and Phipps also identified the hat as the one worn by defendant during the shooting.
Phipps was shown a series of photographs, including defendant's, but failed to make an identification. Later that day, however, both Phipps and McDuffey identified defendant from a lineup as Cooper's assailant.
Defendant testified in his own behalf and admitted his presence in Joe's Hello Tavern on the night of the shooting and that he had worn the apparel described by McDuffey and Phipps, indicating that he left by 1:30 a.m. and was at his home by 2 a.m. where he ate and slept until his arrest several hours later. At the coroner's inquest defendant testified that he had returned home by 1-1:30 a.m. Defendant also testified that he received the black leather coat from an unidentified "sissy" several weeks earlier but that he lent the coat to an unnamed friend prior to the shooting. Defendant's brother testified to an alibi that at the time of the shooting defendant was at home.
• 1 Defendant initially contends that the trial court erred in denying defendant's motion in limine to exclude testimony regarding Cooper's alleged dying declarations. Defendant argues that such statements were mere hearsay and that the prosecution failed to establish that they were intelligibly uttered by the deceased in the belief that his death was imminent and unavoidable.
The law with respect to dying declarations has been firmly established in Illinois. They are broadly defined as extra-judicial statements of fact by the victim, concerning the cause and circumstances of a homicide. In order that such statements be admissible into evidence, as an exception to the rule against hearsay evidence, it must appear that they are made by the victim under the fixed belief and moral conviction that death is impending and certain to follow almost immediately, without opportunity for repentance and in the absence of all hope of ...